Order Granting Defendants’
- Date
- 2021-07-20
Summary
Document 109-1 in Children's Health Defense v. Facebook Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California, filed July 20, 2021. It is Exhibit A, a copy of the court's Order Granting Defendants' Motions to Dismiss Second Amended Complaint, Denying Plaintiff's Motion to Supplement and Denying Leave to Amend, dated June 29, 2021 and signed by Judge Susan Illston. The order summarizes the second amended complaint's four causes of action against Facebook, Mark Zuckerberg, The Poynter Institute for Media Studies, Inc. and Science Feedback, under Bivens, the Lanham Act, 15 U.S.C. § 1125(a), and RICO, 18 U.S.C. §§ 1962(c), 1964(c), plus declaratory relief. It dismisses the claims against Facebook, Zuckerberg and Poynter without leave to amend and the claims against Science Feedback without prejudice.
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Case 3:20-cv-05787-SI Document 109-1 Filed 07/20/21 Page 1 of 46
EXHIBIT A
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1
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3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5
6 CHILDREN'S HEALTH DEFENSE, Case No. 20-cv-05787-SI
7 Plaintiff, ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS SECOND
8 v. AMENDED COMPLAINT, DENYING
PLAINTIFF’S MOTION TO
9 FACEBOOK INC., et al., SUPPLEMENT AND DENYING LEAVE
TO AMEND
10 Defendants.
Re: Dkt. Nos. 68, 69, 75, 76, 103
11
12
United States District Court
13 On May 5, 2021, the Court held a hearing on defendants’ motions to dismiss the second
14 amended complaint and plaintiff’s motion to supplement the complaint. After the hearing, plaintiff
15 filed a request for judicial notice and another motion to further supplement the second amended
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16 complaint and for in camera inspection under the All Writs Act.
17 For the reasons set forth below, the Court GRANTS the motions to dismiss without leave to
18 amend, GRANTS the request for judicial notice, DENIES the motions to supplement the second
19 amended complaint as futile and DENIES the motion for an in camera inspection.
20
21 INTRODUCTION
22 On August 17, 2020, plaintiff Children’s Health Defense (“CHD”) filed this lawsuit against
23 defendants Facebook, Inc. (“Facebook”), Facebook CEO Mark Zuckerberg (“Zuckerberg”), The
24 Poynter Institute for Media Studies, Inc. (“Poynter”), and Science Feedback1 alleging four causes
25 of action: (1) violation of the First and Fifth Amendments pursuant to Bivens v. Six Unknown Named
26
27 1
Science Feedback is a French non-profit organization providing fact-checking services for
28 Facebook. Id. ¶ 20. It appears from the docket that Science Feedback has not yet been served.
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1 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2) false advertising in violation of
2 the Lanham Act, 15 U.S.C. § 1125(a); (3) violation of the Racketeer Influenced and Corrupt
3 Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), 1964(c); and (4) declaratory relief.
4 CHD operates a social media page on Facebook’s platform. CHD posts articles and opinion
5 pieces about the harms of vaccines, including COVID-19 vaccines, as well as the dangers of
6 pesticides and wireless technologies such as 5G. CHD alleges that the United States government
7 — through Congressman Adam Schiff, the Centers for Disease Control (“CDC”), and the World
8 Health Organization (“WHO”), as the CDC’s “proxy” — has “privatized” the First Amendment by
9 “teaming up” with Facebook to censor CHD’s vaccine safety speech. Second Amended Compl.
10 (“SAC”) ¶ 1, Dkt. No. 65-1. CHD alleges that defendants have implemented this campaign by
11 “purporting to flag misinformation” by identifying certain information on CHD’s Facebook page as
12 “false” or “misleading” when that information is, in fact, “valid and truthful,” and through the
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13 posting of a Facebook advisory comment that is affixed to CHD’s Facebook page which informs
14 visitors that they can visit CDC.gov to obtain information about vaccines. Id. CHD alleges that
15 Facebook, Zuckerberg, and the fact-checking organizations have engaged in a “smear campaign”
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16 and “multiple acts of fraud and deception in furtherance of their aggressive and heavy-handed
17 campaign of censorship against Plaintiff’s Facebook page” with the purpose of “stigmatizing CHD
18 and its content regarding vaccines, and discouraging users from accessing this content.” Id. ¶ 4.
19 CHD alleges it has suffered monetary and reputational harm, and CHD seeks damages and
20 declaratory and injunctive relief, including an order directing Facebook to “remove its warning
21 labels and misclassification of all content on [CHD’s] Facebook page, and to desist from any further
22 warnings or classifications” and an order “requiring defendants to make a public retraction of their
23 false statements.” Id. Prayer for Relief.
24
25 BACKGROUND
26 The following facts are drawn from the SAC.2 Plaintiff CHD is a not-for-profit “child health
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28 Plaintiff has twice amended the complaint in response to motions to dismiss filed by
defendants and pursuant to stipulation. With each amendment, the complaint has grown in length,
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1 protection and advocacy group” incorporated under the laws of the State of Georgia. Id. ¶¶ 14, 25.
2 CHD is an “advocate for complete candor as to the risks of environmental toxins, vaccines, 5G and
3 wireless networks, and the conflicts of interest that have compromised government oversight of
4 those products and services.” Id. ¶ 6. CHD operates the website, https://childrenshealthdefense.org,
5 where it publishes research articles and opinion pieces. Id. ¶ 15. CHD receives all of its financial
6 support from contributions, membership fees, and gross receipts from activities related to its tax-
7 exempt functions. Id. Robert F. Kennedy, Jr. founded and leads CHD. Id. ¶ 14.
8 Defendant Facebook, Inc. is a Delaware corporation with its principal place of business in
9 Menlo Park, California. Id. ¶ 16. Facebook operates an online social media and social networking
10 platform on which users like CHD can gather, advocate, and fundraise. Id. Facebook users’
11 utilization of Facebook is governed by Facebook’s Terms of Service that, if violated, may result in
12 the deletion of users’ Facebook account and pages. Id. ¶¶ 36-39. Facebook’s Terms of Service
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13 “permit it to ‘detect misuse of [its] Products, harmful conduct towards others and situations where
14 [it] may be able to help support or protect [its] community.’ Facebook retains limited rights, e.g.,
15 ‘offering help, removing content, blocking access to certain features, disabling an account or
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16 contacting law enforcement[.] [and] shar[ing] data with other Facebook companies when [it]
17 detect[s] misuse or harmful conduct[.]’” Id. ¶ 37 (citing Terms ¶¶ 1, 3(2)(3)).
18 Defendant Mark Zuckerberg is a co-founder of Facebook and serves as Facebook’s
19 chairman, CEO, and controlling shareholder. Id. ¶ 17. In December 2015, Zuckerberg and his wife,
20 Dr. Priscilla Chan, co-founded the Chan Zuckerberg Initiative (“CZI”) to “donate” 99 percent of
21 their Facebook shares in an effort to “develop new drugs, diagnostic tests and vaccines.” Id. ¶ 281.
22 Plaintiff alleges that both Zuckerberg and Facebook have significant financial interests in the
23 vaccines programs that CHD warns against. Id. ¶¶ 274-91.
24 Defendant The Poynter Institute for Media Studies, Inc. (“Poynter”) is a Florida non-profit
25 organization. Id. ¶ 21. Poynter also operates a branded news fact-checking service, PolitiFact. Id.
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if not substance. The original complaint was 95 pages; the first amended complaint was 148 pages;
28 the second amended complaint is 151 pages.
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1 PolitiFact contracts with social media companies, such as Facebook, to fact-check content shared
2 on social media platforms. Id. The SAC also alleges that International Fact-Checking Network
3 (“IFCN”), a unit of Poynter, certifies Facebook’s fact-checking “partners,” including Science
4 Feedback. Id. ¶¶ 105-06, 109.
5 On February 14, 2019, Congressman Adam Schiff, identifying himself as “a Member of
6 Congress who is deeply concerned about declining vaccination rates around the nation,” wrote a
7 public letter addressed to Zuckerberg. Id. ¶ 60. In that letter, Rep. Schiff “urge[] that Facebook
8 implement specific algorithms to identify, censor and remove all so-called ‘vaccine
9 misinformation.’” Id. Because the SAC repeatedly quotes portions of this letter, the Court has
10 reproduced the entirety of the letter here:
11 February 14, 2019
12
United States District Court
Mark Zuckerberg
13 Chairman and Chief Executive Officer
Facebook Inc.
14 1 Hacker Way
Menlo Park, CA 94025
15
Dear, Mr. Zuckerberg:
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As more Americans use the Internet and social media platforms as their
17 primary source of information, it is important that we explore the quality of the
information that they receive, particularly on issues that directly impact the health
18 and well-being of Americans, as well as the billions who use your site around the
world. Accordingly, I am writing out of my concern that Facebook and Instagram
19 are surfacing and recommending messages that discourage parents from vaccinating
their children, a direct threat to public health, and reversing progress made in tackling
20 vaccine-preventable diseases.
21 The scientific and medical communities are in overwhelming consensus that
vaccines are both effective and safe. There is no evidence to suggest that vaccines
22 cause life-threatening or disabling diseases, and the dissemination of unfounded and
debunked theories about the dangers of vaccinations pose a great risk to public
23 health. In fact, the World Health Organization listed vaccine hesitancy – the
reluctance or refusal to vaccinate despite the availability of vaccines – as one of the
24 top threats to global health in 2019. In a dramatic demonstration of the dangers,
Washington state declared a public health emergency due to a measles epidemic in
25 Clark County, signaling the resurgence of a potentially fatal disease that was
effectively eliminated from the United States decades ago by vaccines.
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There is strong evidence to suggest that at least part of the source of this trend
27 is the degree to which medically inaccurate information about vaccines surface on
the websites where many Americans get their information, among them Facebook
28 and Instagram. As I have discussed with you in other contexts, and as you have
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acknowledged, the algorithms which power these services are not designed to
1 distinguish quality information from misinformation or misleading information, and
the consequences of that are particularly troubling for public health issues. I
2 acknowledge that it may not always be a simple matter to determine when
information is medically accurate, nor do we ask that your platform engage in the
3 practice of medicine, but if a concerned parent consistently sees information in their
Newsfeed that casts doubt on the safety or efficacy of vaccines, it could cause them
4 to disregard the advice of their children’s physicians and public health experts and
decline to follow the recommended vaccination schedule. Repetition of information,
5 even if false, can often be mistaken for accuracy, and exposure to anti-vaccine
content via social media may negatively shape user attitudes towards vaccination.
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Additionally, even parents and guardians who seek out accurate information
7 about vaccines could unwittingly reach pages and videos with misinformation. A
report by the Guardian found that on both Facebook and YouTube, suggested
8 searches related to vaccines often led users to pages or groups providing medically
and scientifically inaccurate information. Finally, I am concerned by the report that
9 Facebook accepts paid advertising that contains deliberate misinformation about
vaccines.
10
As a Member of Congress who is deeply concerned about declining
11 vaccination rates around the nation, I am requesting additional information on the
steps that you currently take to provide medically accurate information on
12 vaccinations to your users, and to encourage you to consider additional steps you can
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take to address this growing problem. I was pleased to see YouTube’s recent
13 announcement that it will no longer recommend videos that violate its community
guidelines, such as conspiracy theories or medically inaccurate videos, and
14 encourage further action to be taken related to vaccine misinformation.
15 Specifically, I request that you provide answers on the following questions:
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16 •Does content which provides medically inaccurate information about
vaccines violate your terms of service?
17
•What action(s) do you currently take to address misinformation related to
18 vaccines on your platforms? Are you considering or taking additional actions?
19 •Do you accept paid advertising from anti-vaccine activists and groups on
your platforms? How much has been spent in the past year on advertising on this
20 topic?
21 •What steps do you currently take to prevent anti-vaccine videos or
information from being recommended to users, either algorithmically or as a
22 suggested search result?
23 I appreciate your timely response to these questions and encourage you to
consider what additional steps you can take to address this growing problem. As
24 more Americans rely on your services as their primary source of information, it is
vital that you take that responsibility with the seriousness it requires, and nowhere
25 more so than in matters of public health and children’s health. Thank you for your
attention to this important topic.
26
Sincerely,
27
Adam B. Schiff/Member of Congress
28
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1 Id. ¶¶ 60, 62-63; https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-
2 facebook- regarding-anti-vaccine-misinformation.
3 The SAC alleges,
4 The term “vaccine misinformation” (as Rep. Schiff defined it, and as Facebook
implemented it) is a euphemism for any expression of skepticism toward government
5 and industry pronouncements about vaccine safety and efficacy, or of reasons why
parents or their children’s physicians might decline to follow the CDC’s full
6 “recommended vaccine schedule,” regardless of whether those expressions are true
or not. Thus, Rep. Schiff provided a substantive standard – deference to CDC/WHO
7 pronouncements conclusively presumed to be “authoritative” – by which Facebook
should identify and censor vaccine “misinformation” on its platform. The term
8 “vaccine misinformation” does not, for example, include erroneous, misinformed or
fraudulent statements made by pharmaceutical companies, or the CDC, to promote
9 vaccines.
10 Id. ¶ 61.
11 Rep. Schiff subsequently made public statements that “if the social media companies can’t
12 exercise a proper standard of care when it comes to a whole variety of fraudulent or illicit content,
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13 then we have to think about whether [Section 230] immunity still makes sense.” Id. ¶ 64.
14 In March 2019, Facebook officially announced it would “reduce the ranking of groups and
15 Pages that spread misinformation about vaccinations in News Feed and Search” and “remove access
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16 to [] fundraising tools for Pages that spread misinformation about vaccinations.” Id. ¶ 68. On
17 September 4, 2019, the WHO Director-General issued a statement “welcom[ing] the commitment
18 by Facebook to ensure that users find facts about vaccines across Instagram, Facebook Search,
19 Groups, Pages and forums where people seek out information and advice.”3 Id. ¶ 69.
20 In 2020, Zuckerberg announced that Facebook would donate $10 million to the CDC
21 Foundation’s Combat Coronavirus Fundraiser, and $10 million to the WHO. Id. ¶ 46. As such,
22 Facebook is listed as a “partner” on the CDC Foundation’s website under the “partners.” Id. ¶ 48.
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3
24 The statement further read:
25 Facebook will direct millions of its users to WHO’s accurate and reliable
vaccine information in several languages, to ensure that vital health messages reach
26 people who need them the most. The World Health Organization and Facebook have
been in discussions for several months to ensure people can access authoritative
27 information on vaccines and reduce the spread of inaccuracies on Facebook and
Instagram.
28
Id. ¶ 69.
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1 The CDC specifies its work with “social media partners” in its “Vaccine With Confidence” initiative:
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13 On or about November 2017, CHD agreed to Facebook’s Terms of Service to create its
14 Facebook page. Id. ¶ 33. CHD has since actively maintained its Facebook page. Id. On a daily (or
15 more frequent) basis, CHD uploads articles and video posts on its Facebook page to “expose truths”
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16 about the severe health dangers of certain vaccines and technologies. Id. ¶ 26. Before publication,
17 CHD conducts an internal fact-check to “ensure that every article cites sources for every fact it
18 asserts.” Id. ¶ 30. CHD currently has a Facebook community of 122,830 followers. Id. ¶ 33.
19 Beginning on or around January 15, 2019, Facebook began labeling certain content posted
20 to CHD’s Facebook page as “false,” out of date, or unreliable. Id. ¶¶ 78-79, 115-18, 126, 131, 141,
21 157. The labels indicate that these determinations are reached by “independent,” “third-party” “fact-
22 checkers” who review potentially misleading information and rate it as false, altered, partly false,
23 missing context, satire, or true. Id. ¶¶ 78, 217-218.
24 The SAC contains some examples of these labels:
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1 On or around May 1, 2019, Facebook permanently disabled the “dispute” function on CHD’s
2 account, barring CHD from challenging any actions taken by Facebook. Id. ¶ 200. Facebook also
3 began to “demote and/or ban content (‘shadow-ban’) that CHD posted to its Facebook page” using
4 its “patent on social media shadowbanning.” Id. ¶ 201.
5 On or around May 2, 2019, Facebook deactivated the “donate” button on CHD’s page and
6 barred CHD from buying new Facebook advertisements. Id. ¶¶ 198-99. From January 2019 to May
7 2019, CHD generated $41,241 in user donations through its Facebook page. Id. ¶ 223. After
8 Facebook’s deactivation of CHD’s donate function, CHD has not received any further donation
9 revenue through Facebook. Id.
10 On September 4, 2019, after repeated violations, Facebook acted against CHD at the account
11 level, posting a Warning Label at the top of CHD’s Facebook page. Id. ¶ 81. The warning label,
12 which remains on CHD’s Facebook today, states, “This Page posts about vaccines. When it comes
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13 to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC)
14 has information that can help answer questions you may have about vaccines. Go to CDC.gov.” Id.
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26 Poynter’s inclusion in this lawsuit largely stems from one fact-check of content appearing
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1 on CHD’s Facebook page.4 On April 16, 2020, CHD shared on its Facebook page an article written
2 by Collective Evolution, a third-party website. Id. ¶ 151. PolitiFact labeled the title of Collective
3 Evolution’s article as “false,” noting that the title is “ambiguous and misleading.” Id. Collective
4 Evolution accepted PolitiFact’s conclusion, correcting the article’s title from “New Study: The Flu
5 Vaccine is ‘Significantly Associated’ With An Increased Risk of Coronavirus” to “Study: The Flu
6 Vaccine Is ‘Significantly Associated’ With An Increased Risk of Coronaviruses—Not COVID 19.”
7 Dkt. No. 65-4 at 60 (emphasis added).
8
9 LEGAL STANDARD
10 A complaint must contain “a short and plain statement of the claim showing that the pleader
11 is entitled to relief,” and a complaint that fails to do so is subject to dismissal pursuant to Rule
12 12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
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13 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
14 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts
15 that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Northern District of California
16 Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of
17 specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative
18 level.” Twombly, 550 U.S. at 555, 570. “A pleading that offers ‘labels and conclusions’ or ‘a
19 formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
20 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
21 devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “While legal
22 conclusions can provide the framework of a complaint, they must be supported by factual
23 allegations.” Id. at 679.
24 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the
25 complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. City
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CHD’s opposition to Poynter’s motion to dismiss states that Facebook added a Politifact
28 fact-check to a January 21, 2021 CHD post. CHD’s Opp’n to Poynter’s Mtn. at 4 n.4 (Dkt. No. 70).
However, CHD’s motions to supplement the SAC do not address the January 21, 2021 fact-check.
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1 of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as
2 true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
3 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
4 If a court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth
5 Circuit has repeatedly held that “a district court should grant leave to amend even if no request to
6 amend the pleading was made, unless it determines that the pleading could not possibly be cured by
7 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and
8 internal quotation marks omitted).
9
10 DISCUSSION
11 I. First Cause of Action: Violations of First and Fifth Amendments Pursuant to Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
12
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Plaintiff alleges defendants have violated its First and Fifth Amendment rights and seeks
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damages for those violations pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
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Narcotics, 403 U.S. 388, 389, 395-96 (1971). In Bivens, the Supreme Court recognized an implied
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right of action for damages against federal officers for violating an individual’s rights under the
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Fourth Amendment to be free from unreasonable searches and seizures. “In making this finding,
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the United States Supreme Court ‘created a remedy for violations of constitutional rights committed
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by federal officials acting in their individual capacities.’” Life Savers Concepts Ass’n of California
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v. Wynar, 387 F. Supp. 3d 989, 997 (N.D. Cal. 2019) (quoting Consejo de Desarrollo Economico
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de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)).
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The SAC alleges that “the corporate and individual defendants have acted in concert with
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Rep. Schiff, federal officials at the CDC and the CDC Foundation, and under the CDC’s express
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consent, the WHO, a United Nations specialized agency, to deprive Plaintiff of its constitutional
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free expression rights.” SAC ¶ 308. The SAC alleges that “Facebook willfully participated in joint
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action with Rep. Schiff, CDC and CDC Foundation, and/or WHO officials or their agents to enforce
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CDC and WHO policies through Facebook’s signature algorithms and machine learning to define,
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identify, label as ‘false news’ and/or censor Plaintiff’s speech with respect to vaccine-related
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1 speech.” Id. ¶ 309.5 The SAC alleges that “Facebook and the other defendants violated Plaintiff’s
2 First Amendment rights by labeling CHD’s content ‘False Information,’ and taking other steps
3 effectively to censor or block content from users. . . . Facebook took these actions against Plaintiff
4 in an effort to silence and deter its free speech solely on account of their viewpoint.” Id. ¶ 318.
5 CHD also asserts a First Amendment retaliation claim, alleging that after it filed this lawsuit,
6 Facebook notified CHD that it “would modify the parties’ contractual term of service § 3.2, effective
7 October 1, 2020, to read: ‘We also can remove or restrict access to your content, services, or
8 information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal
9 or regulatory impacts to Facebook.’” Id. ¶ 324.
10 CHD alleges that defendants violated the Fifth Amendment by permanently disabling the
11 “donate” button on CHD’s Facebook page and by refusing “to carry CHD’s advertising of its
12 fundraising campaigns.” Id. ¶ 319.6 CHD alleges that “Defendants’ actions amount to an unlawful
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13 deprivation or ‘taking’ of Plaintiff’s property interests in its own fundraising functions. . . . without
14 just compensation or due process.” Id. ¶¶ 320, 322.
15 Defendants move to dismiss CHD’s Bivens claims on several grounds. Facebook and
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16 Poynter contend that private entities cannot be held liable under Bivens. Defendants also contend
17 that there are no allegations supporting a plausible inference of federal action by any defendant, and
18 that allowing CHD’s Bivens claims to proceed would run afoul of the Supreme Court’s admonition
19 that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S.
20 Ct. 1843, 1857 (2017), because no court has recognized a Bivens damages remedy against a social
21 media company, a corporate CEO, or fact-checking organizations for violations of the First or Fifth
22 Amendments.
23 As set forth below, the Court concludes that CHD’s claims against Facebook and Poynter
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Although the SAC contains references to CHD’s speech about 5G technology, the
gravamen of CHD’s complaint relates defendants’ alleged censorship of CHD’s vaccine-related
26 speech.
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As Poynter notes, although the SAC alleges that “defendants” engaged in various actions,
most of the allegations, such as the disabling of the “donate” button, relate to acts taken by Facebook,
28 not Poynter.
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1 are foreclosed as a matter of law because a Bivens action may only be brought against individual
2 federal actors and cannot be brought against private entities such as corporations or nonprofits. In
3 addition, the SAC fails to allege that Zuckerberg engaged in federal action, a necessary element of
4 a Bivens claim. As such, the Court finds it unnecessary to address the parties’ arguments about the
5 expansion of Bivens.
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7 A. Private Entities Such as Facebook and Poynter May Not Be Sued Under
Bivens
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In Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001), the Supreme Court
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held that a plaintiff could not bring a Bivens action against a private corporation operating a halfway
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house under contract with the Bureau of Prisons. The Court stated that “[t]he purpose of Bivens is
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to deter individual federal officers from committing constitutional violations,” and that “the threat
12
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of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens.”
13
Id. at 71; see also Minneci v. Pollard, 565 U.S. 118, 127 (2012) (explaining that the holding in
14
Malesko was based in large part on “the nature of the defendant, i.e., a corporate employer rather
15
than an individual employee”); see also Reid v. United States, 825 F. App’x 442, 444 (9th Cir. 2020)
Northern District of California
16
(unpublished) (“A claim for damages based on individualized mistreatment by rank-and-file federal
17
officers is . . . what Bivens was meant to address.”).
18
CHD contends that “Malesko doesn’t apply” “because no other law permits suit against
19
Facebook [or Poynter] for its past acts of viewpoint discrimination against CHD.” CHD’s Opp’n to
20
Facebook’s Mtn. at 9 (Dkt. No. 71); CHD’s Opp’n to Poynter’s Mtn. at 11 (Dkt. No. 70). However,
21
CHD does not cite any post-Malesko cases in which courts have permitted Bivens actions against
22
private entities. To the contrary, after Malesko courts have consistently held that plaintiffs may not
23
pursue Bivens actions against private entities. See, e.g., Agyeman v. Corr. Corp. of Am., 390 F.3d
24
1101, 1103 (9th Cir. 2004) (“[T]o the extent that Agyeman sought to hold Corrections Corporation
25
itself liable, the case could not be brought under Bivens . . . since Corrections Corporation is
26
a private corporation.”); Riggio v. Bank of America Nat’l Trust & Saving Ass’n, 31 Fed. App’x. 505,
27
505-06 (9th Cir. 2002) (unpublished) (“There is no private right of action for damages against
28
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1 private entities that are alleged to have engaged in constitutional deprivations, even if they are acting
2 under color of federal law.”); Rahieh v. Paragon Systems, Inc., 316 F. Supp. 3d 1103, 1107 (N.D.
3 Cal. 2018) (citing Malesko and dismissing Bivens claim against private corporation that contracts
4 with federal government to provide security for offices); Bender v. General Services Admin., 539 F.
5 Supp. 2d 702, 708 (S.D.N.Y. 2008) (same).
6 Accordingly, the Court concludes that as a matter of law, CHD cannot bring a Bivens action
7 against Facebook and Poynter because they are private entities.
8
9 B. Bivens Allegations against Zuckerberg
10 The Court now turns to CHD’s Bivens claims against Zuckerberg. As the Ninth Circuit has
11 recognized, the Supreme Court has yet to “completely foreclose applying Bivens to private actors.”
12 Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018). “[T]he private status of [a] defendant
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13 will not serve to defeat a Bivens claim, provided that the defendant engaged in federal action.”
14 Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987). However, “[w]e
15 start with the presumption that conduct by private actors is not state action.” Florer v. Congregation
Northern District of California
16 Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).
17 The Ninth Circuit applies “similar tests to determine whether federal action exists to support
18 a Bivens claim or to determine whether State action will permit a § 1983 cause of action.” Morse v.
19 N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997). In either scenario, a private
20 actor’s conduct must be “fairly attributable” to the government. Id. at 1340. The Ninth Circuit has
21 “recognize[d] at least four different criteria, or tests, used to identify state action: ‘(1) public
22 function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus.’”
23 Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton v. Providence St. Joseph
24 Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999)).
25 CHD asserts that Zuckerberg has engaged in federal action under the following theories: (1)
26 that Facebook/Zuckerberg and the federal government engaged in joint action based on, inter alia,
27 statements by the CDC, the WHO (as the CDC’s “proxy”), and Zuckerberg that they were “in
28 discussion” or “working together” to remove vaccine “misinformation” and (2) that the immunity
14
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1 provided by Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(2), in
2 combination with pressure from Congressman Schiff, coerced and/or encouraged
3 Facebook/Zuckerberg to take the challenged actions against CHD’s Facebook page.
4
5 1. No plausible allegations of personal involvement
6 As an initial matter, Zuckerberg contends that the SAC does not plausibly allege that he was
7 personally involved in or directed the acts challenged in this lawsuit, namely the posting of the
8 warning label on CHD’s Facebook page, the fact-checks of specific CHD posts, and the decision to
9 “demonetize” and “shadow-ban” CHD. The Court agrees.
10 The SAC alleges that Zuckerberg “is sued individually, and under theories of respondeat
11 superior, alter ego, and agency liability.” SAC ¶ 17. However, “[b]ecause vicarious liability is
12 inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
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13 defendant, through the official’s own actions, has violated the Constitution.” Iqbal, 556 U.S. at 676
14 (emphasis added). Thus, CHD must allege that Zuckerberg himself has taken actions that violate
15 CHD’s constitutional rights. See id.
Northern District of California
16 The SAC alleges that “[i]t is highly probable that Zuckerberg has participated in, and
17 personally directed ‘vaccine misinformation’ policy decisions at Facebook which directly harmed
18 CHD” and that “[t]he decision to demonetize advertising and donations for organizations like CHD
19 related to ‘vaccine misinformation’ is a decision that Zuckerberg likely would have known about,
20 and approved, given his historical prominence in decisions related to content management generally,
21 and vaccine information specifically.” SAC ¶ 260. The SAC also alleges that after Congressman
22 Schiff’s February 14, 2019 public letter to Facebook and Zuckerberg urging Facebook to remove
23 “vaccine misinformation,” “[o]n information and belief, Zuckerberg met personally with Rep. Schiff
24 . . . to discuss, inter alia, Facebook’s compliance with Rep. Schiff’s February 19, 2019 public letter
25 and press release, and those specific standards which were or would be used to identify and censor
26 vaccine ‘misinformation.’” id. ¶ 64. CHD also alleges that on March 4, 2019, CHD’s president sent
27 a letter to Zuckerberg offering a “rebuttal” of Rep. Schiff’s letter, and:
28
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From his public statements and adverse motives . . . it may be reasonably inferred
1 that Zuckerberg was personally and directly involved in decisions and actions which
Facebook took to censor and/or “fact-check” CHD’s individual posts, and knowingly
2 mislead users about the truthfulness of CHD’s posts, and on the CHD account level,
deliberately mislead users about CHD’s page’s reliability, and remove its advertising
3 and fundraising tools. Zuckerberg and/or the Doe defendants responsible for those
actions either read CHD’s March 4, 2019 letter or rejected it without reading, but in
4 either event, they did no investigation of it and proceeded within days to publish their
warning label and “fact-checks” [with knowledge that the warning label and fact-
5 checks were false, or with reckless disregard as to the truth of the warning label and
fact-checks].
6
Id. ¶ 65.
7
Similarly, in CHD’s opposition to Facebook’s motion, CHD asserts that “[s]hortly after
8
Schiff’s pressure on Zuckerberg, Facebook initiated its censorship and demonetization campaign
9
against CHD” and “[t]he timing of this comprehensive campaign against CHD plausibly indicates
10
that it was initiated in response to pressure that Congressman Schiff brought to bear in the course of
11
personal communications with Zuckerberg.” CHD’s Opp’n to Facebook’s Mtn. at 28. CHD’s
12
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opposition brief also emphasizes that Zuckerberg is a “hands-on” CEO and “the public face of
13
Facebook.” Id. at 27-28. CHD’s opposition cites Zuckerberg’s testimony before Congress in which
14
he stated that “what we do is try to focus on misinformation that has the potential to lead to imminent
15
or physical harm,” expressed his belief that “it’s important that people get their vaccines,” and that
Northern District of California
16
“If someone wants to post anti-vaccination content or they want to join a group where people are
17
discussing that, we don’t stop them from doing that . . . But . . . we don’t go out of our way to make
18
sure our group recommendation systems show people or encourage people to join these groups. We
19
discourage that.” SAC ¶ 268. CHD argues that “[t]hese statements leave little doubt that
20
Zuckerberg is personally involved in Facebook’s campaign.” CHD’s Opp’n to Facebook’s Mtn. at
21
28.
22
Alleging that it is “highly probable” and “likely” that Zuckerberg participated in, personally
23
directed, and approved the specific acts challenged in this lawsuit is not sufficient. Similarly, it is
24
not sufficient to allege that based on Zuckerberg’s “public statements and adverse motives . . . it
25
may be reasonably inferred that Zuckerberg was personally and directly involved.” CHD is required
26
to allege facts showing that Zuckerberg actually participated in, directed, or approved any of the
27
alleged constitutional violations. At best, CHD has alleged that Zuckerberg has made general
28
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1 statements about removing “misinformation that has the potential to lead to imminent or physical
2 harm” and discouraging “anti-vaccine” content on Facebook, and that “on information and belief”
3 Zuckerberg met with Congressman Schiff to discuss the issue of vaccine misinformation on
4 Facebook’s platform. CHD speculates that Zuckerberg and Schiff discussed “specific standards”
5 that would be used to identify and censor vaccine “misinformation,” and CHD speculates that
6 “Zuckerberg and/or the Doe defendants either read CHD’s March 4, 2019 letter or rejected it without
7 reading.” None of these allegations contain facts showing personal involvement by Zuckerberg in
8 deciding to post the warning label on CHD’s Facebook page, the decisions to post fact-checks to
9 particular CHD posts, or the decisions to “demonetize” or “shadow-ban” CHD.
10 Throughout the SAC, the briefing, and the hearing on these motions, CHD and its counsel
11 repeatedly equate any references to “vaccine misinformation” with CHD’s content, and therefore
12 that any statements by Facebook, Zuckerberg, the CDC, or any other entity about removing “vaccine
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13 misinformation” from Facebook should be interpreted as statements about censoring CHD’s
14 vaccine-related speech. The Court cannot make such an inferential leap, as the phrase “vaccine
15 misinformation” is a general one that could encompass many different types of speech and
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16 information about vaccines. Indeed, it is undisputed that there are numerous posts on CHD’s
17 Facebook page that are not flagged as “false” or “misleading” by Facebook or the fact-checkers,
18 and thus that CHD is able to post some articles and other information about vaccines without those
19 articles being deemed “vaccine misinformation” by Facebook or the fact-checkers.
20 Because CHD’s bald and conclusory allegations regarding Zuckerberg’s personal
21 involvement in the decisions about CHD’s Facebook page are unsupported by facts they “are not
22 entitled to the assumption of truth.” Iqbal, 556 U.S. at 680-81; see also Soto-Torres v. Fraticelli,
23 654 F.3d 153, 159-60 (1st Cir. 2011) (holding insufficient allegations in support of Bivens claim
24 against FBI agent that agent “was the officer in charge during the incident,” that he “participated in
25 or directed the constitutional violations” and that defendant “knew of the violation[s] and failed to
26 act to prevent them”); see also OSU Student Alliance v. Ray, 699 F.3d 1053, 1075 (9th Cir. 2012)
27 (“[A]llegations of facts that demonstrate an immediate supervisor knew about the subordinate
28 violating another’s federal constitutional right to free speech, and acquiescence in that violation,
17
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1 suffice to state free speech violations under the First and Fourteenth Amendments”; student
2 newspaper adequately stated § 1983 claims against state college president and vice-president where
3 newspaper alleged, inter alia, that president and vice-president oversaw subordinate’s decision-
4 making process and was kept informed of controversy and allegedly unconstitutional decisions
5 through multiple emails).
6 Accordingly, the Court concludes that CHD’s Bivens claim against Zuckerberg fails because
7 CHD has not alleged any facts showing Zuckerberg’s personal involvement in the alleged
8 constitutional violations. As discussed below, the Court concludes that the Bivens claims fails for
9 the additional and independent reason that CHD has not alleged that the challenged acts constitute
10 federal action.
11
12 2. No Federal Action
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13 a. Joint Action
14 The joint action test asks “whether state officials and private parties have acted in concert in
15 effecting a particular deprivation of constitutional rights.” Tsao v. Desert Palace, Inc., 698 F.3d
Northern District of California
16 1128, 1140 (9th Cir. 2012) (internal quotation marks omitted). This requirement can be satisfied
17 “by showing that the private party was a willful participant in joint action with the State or its
18 agents.” Id. “Ultimately, joint action exists when the state has so far insinuated itself into a position
19 of interdependence with [the private entity] that it must be recognized as a joint participant in the
20 challenged activity.” Id.
21 CHD contends that it has demonstrated joint action because it has alleged,
22 [T]hat (1) the CDC, a federal agency, the WHO, as its proxy, and Zuckerberg stated
repeatedly that they were “in discussion” or “working together” to “reduce [contain,
23 or remove] the spread of [vaccine-related] inaccuracies, or “misinformation,” and
“reach individuals with [] targeted health information,” which resulted in Facebook’s
24 actions against CHD (SAC ¶¶ 49-52, 69-70, 308); (2) Facebook promotes its
“Preventive Health App” for universal vaccination as another form of ongoing
25 collaboration with the CDC (id. ¶¶ 56-58); (3) Defendants are contributors to and
partners with the CDC Foundation, a quasi-agency proxy that serves as the CDC’s
26 fundraising arm (id. ¶¶ 40-48); (4) under the Global Health Security Agenda
(“GHSA”), the State Department recruits private sector partners – Facebook – to
27 “neutralize vaccine hesitancy,” and funds, through intermediaries both Poynter, and
its IFCN (id. ¶¶ 98-101); (5) the FBI and its entity, InfraGard, and federal agents
28 acting “in conjunction with” the British Government, actively encourage Facebook’s
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participation in the GHSA to shape the public debate on vaccines through censorship
1 and demonetization of CHD (id. ¶¶ 102-04); and (6) federal actors and Facebook
benefit from these actions.
2
CHD’s Opp’n to Facebook’s Mtn. at 7-8.
3
These allegations are insufficient. First, allegations involving non-federal actors, such as
4
the WHO,7 the British government, and government-affiliated nonprofits such as the CDC
5
Foundation and InfraGard,8 are irrelevant to determining whether CHD has plausibly alleged joint
6
action.
7
Second, general statements by the CDC and Zuckerberg about “working together” to reduce
8
the spread of health or vaccine misinformation, or to promote universal vaccination do not show
9
that the government was a “joint participant in the challenged activity,” specifically the decision to
10
put the warning label on CHD’s Facebook page, the fact-checks, and Facebook’s “demonetization”
11
and “shadow-banning” of CHD’s content and page. For example, one of the allegations CHD relies
12
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upon is contained in Paragraph 52 of the SAC, which alleges, “Zuckerberg has stated publicly that
13
Facebook is working with both the CDC and the WHO: ‘We work with the [Centers for Disease
14
Control and Prevention] and we work with [the World Health Organization] and trusted health
15
organizations to remove clear misinformation about health-related issues that could cause an
Northern District of California
16
imminent risk of harm.’” SAC ¶ 52. This statement (and similar general statements by Zuckerberg,
17
Facebook, the CDC, or other entities within the federal government about “working to remove
18
misinformation”) does not support the inference that Facebook (or Zuckerberg) worked in concert
19
20
7
21 The Court takes judicial notice of the fact that the WHO is an international organization
comprised of representatives from 194 member states. See “Our Structure,” World Health
22 Organization, https://www.who.int/about/who-we-are. The United States’ membership in the WHO
does not transform the WHO into a federal entity, and CHD does not provide any authority holding
23 otherwise. See NCAA v. Tarkanian, 488 U.S. 179, 183, 193 (1988) (holding inter alia that state
university’s membership in NCAA did not make the NCAA’s conduct state action).
24 8
The SAC alleges that the CDC Foundation is a nonprofit, SAC ¶ 40, and that InfraGard
25 was formed in 1996 by the FBI’s Office of Private Sector as part of a “public-private partnership.”
Id. ¶ 103; see also “About Us,” InfraGard National, https://infraguardnational.org/about-
26 us/overview/ (stating InfraGard “is an FBI-affiliated nonprofit organization”). Government-
affiliated nonprofits are considered private entities. See Lansing v. City of Memphis, 202 F.3d 821,
27 825, 828 (6th Cir. 2000) (applying state-action test to determine whether government-affiliated
nonprofit “can be held to constitutional standards when its actions so approximate state action that
28 they may be fairly attributed to the state.”).
19
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1 with the CDC to censor CHD’s speech, retaliate against CHD, or otherwise violate CHD’s
2 constitutional rights.
3 The SAC’s allegations about the State Department recruiting “private sector partners” are
4 similarly devoid of any facts showing joint action: the SAC alleges that President Obama’s 2016
5 Executive Order, Advancing the Global Health Security Agenda [GHSA] to Achieve a World Safe
6 and Secure from Infectious Disease Threats “authorized the State Department to recruit private
7 corporations – including social media platforms and their enablers, such as Facebook and
8 Poynter/Science Feedback – to suppress speech such as Plaintiff’s solely because ,” and thus the
9 CDC had provided the “standard of decision” for censorship of CHD’s speech.it is critical of
10 GHSA’s agenda, or the risks that agenda poses to public health.” SAC ¶ 100. That allegation is
11 conclusory, and moreover, CHD does not actually allege that the State Department has a relationship
12 with Facebook, much less that the State Department and Facebook have acted together to censor
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13 CHD’s speech.
14 At the hearing on this matter, CHD’s counsel asserted that under the Ninth Circuit’s decision
15 in Mathis v. Pacific Gas & Electric Co., 75 F.3d 498 (9th Cir. 1966), CHD had adequately alleged
Northern District of California
16 joint action because Facebook is “deferring to the CDC” about what constitutes “vaccine
17 misinformation,” and thus the CDC has provided the “standard of decision” for censorship of CHD’s
18 speech. In Mathis, PG&E terminated employee Mathis after an undercover investigation revealed
19 that Mathis had, in workplace conversations, agreed to sell marijuana offsite. Id. at 501. Mathis
20 sued PG&E under Bivens9 alleging that his firing violated his constitutional rights because PG&E
21 terminated him pursuant to a Nuclear Regulatory Commission policy, and alleging the same
22 constitutional violations under 42 U.S.C. § 1983 on the theory that PG&E had conducted the
23 undercover investigation in close partnership with a county narcotics task force. The district court
24 dismissed the case and the Ninth Circuit reversed, holding that Mathis should be permitted to
25 proceed and that “to prove federal action for his Bivens claim, Mathis needed to show PG&E decided
26 to exclude him pursuant to an NRC ‘standard of decision for the exclusion of illegal drug users from
27
28
9
Mathis was decided before the Supreme Court’s decision in Malesko holding that a private
entity could not be sued under Bivens.
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1 protected areas.’” Id. at 502 (quoting Mathis v. Pacific Gas & Elec. Co., 891 F.2d 1429, 1434 (9th
2 Cir. 1989)). The NRC pressure must so have influenced PG&E’s decision “that the choice must in
3 law be deemed to be that of the [agency].” Mathis, 75 F.3d at 502.
4 On remand, the case went to trial and the district court granted judgment in favor of PG&E.
5 On the second appeal, the Ninth Circuit held that Mathis failed to show that PG&E had engaged in
6 federal or state action. On the Bivens claim, Mathis contended that although there was no published
7 NRC policy that compelled PG&E’s decision to fire him, there was an informal policy that
8 controlled. Id. Mathis had submitted evidence that “the NRC was directly pressuring PG&E to
9 adopt strong anti-drug policies,” including that “PG&E was seeking permission to start up its Diablo
10 Canyon reactor and was consequently trying to please the NRC,” as well as documents showing that
11 an NRC inspector who visited Diablo Canyon “urged on PG&E a rule that would have excluded for
12 offsite drug involvement only ‘[p]eople in key assignments,’ and then only until the company was
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13 satisfied they wouldn’t present a hazard on the job or otherwise affect the company.” Id. The Ninth
14 Circuit held this evidence was insufficient because Mathis failed to show that “the NRC was
15 promoting a rule that would have excluded someone involved in the type of conduct he was
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16 suspected of.” Id. The court rejected Mathis’ argument that his evidence showed that “any measures
17 PG&E took against drug involvement at Diablo Canyon were designed to allay NRC concerns.” Id.
18 at 503.
19 In essence, he asks us to hold that regulatory interest in a problem transforms any
subsequent private efforts to address the program (even those expressly designed to
20 obviate the need for regulation) into state action. There was no hint of any such
notion in Mathis I and we reject it now. If the government is considering regulation,
21 affected private parties can try to convince it there’s no need to regulate without
thereby transforming themselves into the state’s agents.
22
Id. The court further noted, “[t]he government policy doesn’t have to be formal, but it does have to
23
compel the challenged action.” Id. at 503 n.2. As to the plaintiff’s claim that PG&E engaged in
24
“joint action” with the government task force, the Ninth Circuit held that Mathis “needed to prove
25
not merely that PG&E had a close relationship with the Task Force, but also that the relationship
26
encompassed PG&E’s plant-access decisions.” Id. at 504. The Ninth Circuit held that Mathis has
27
failed to do so because he only showed that PG&E conducted its investigation “in close cooperation”
28
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1 with the task force but did not have any evidence that the task force was involved in the decision to
2 exclude Mathis from the plant. Id.
3 Mathis does not support CHD. Relying on Congressman Schiff’s February 2019 letter to
4 Zuckerberg, CHD contends that Congressman Schiff “provided a substantive standard – deference
5 to CDC/WHO pronouncements conclusively presumed to be ‘authoritative’ – by which Facebook
6 should identify and censor vaccine ‘misinformation’ on its platform.” SAC ¶ 61. However,
7 nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when
8 it determines what speech constitutes vaccine misinformation or whether particular posts are false
9 or misleading. Instead, Rep. Schiff’s letter expressed his concern about the existence of “medically
10 inaccurate information about vaccines” on Facebook and other social media platforms, and he asked
11 Facebook for information about whether content that “provides medically inaccurate information
12 about vaccines” violates Facebook’s terms of service and what actions Facebook “currently take[s]
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13 to address misinformation related to vaccines on your platforms” and whether Facebook was
14 “considering or taking additional actions?” https://schiff.house.gov/news/press-releases/schiff-
15 sends-letter-to-google-facebook-regarding-anti-vaccine-misinformation. None of the general
Northern District of California
16 statements or questions in Representative Schiff’s letter can be interpreted as providing a specific
17 standard of decision that mandated the particular actions that Facebook took with regard to CHD’s
18 Facebook page. See Mathis, 75 F.3d at 502 (“It wasn’t enough to show that PG&E was aware of a
19 generalized federal concern with drug use at nuclear power plants, or even that specific government
20 standards would have required exclusion on some materially different set of facts. The NRC
21 pressure must so have influenced PG&E’s decision ‘that the choice must in law be deemed to be
22 that of the agency.’”). Indeed, the Court notes that the SAC alleges that Facebook began censoring
23 its speech starting on January 15, 2019, which was prior to Rep. Schiff’s letter. See SAC ¶ 78.
24 Nor does the fact that Facebook directs users to the CDC website for information about
25 vaccines mean that the CDC has supplied the “standard of decision” for Facebook’s regulation of
26 content on its platform. Similarly, simply alleging that Facebook and the CDC are “working
27 together” or “partnering” to curb the spread of “vaccine misinformation” does not allege that the
28 specific acts challenged in this lawsuit were made pursuant to a CDC policy. Instead, what CHD
22
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1 has plausibly alleged is that Facebook created its own algorithms and standards for detecting
2 “vaccine misinformation,” and that in doing so, Facebook may have relied on CDC information
3 about vaccines to determine what information is “misinformation.” That is not enough to show that
4 Facebook’s actions were “compelled” by any particular CDC “standard of decision.” See Mathis,
5 75 F.3d at 502. CHD equates generalized statements about “working with the CDC” to “remove
6 misinformation” or “vaccine misinformation,” with the adoption of a CDC “standard of decision”
7 about what content to remove. CHD’s argument is akin to the plaintiff’s losing assertion in Mathis
8 that “any measures PG&E took against drug involvement at Diablo Canyon” were as a result of a
9 federal policy. Id. As the Ninth Circuit held in Mathis, there is a “missing link” connecting the
10 government “standard of decision” to the allegedly unconstitutional act.
11 Nor has CHD alleged that the government was actually involved in the decisions to label
12 CHD’s posts as “false” or “misleading,” the decision to put the warning label on CHD’s Facebook
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13 page, or the decisions to “demonetize” or “shadow-ban.” In Federal Agency of News LLC v.
14 Facebook, Inc., 432 F. Supp. 3d 1107 (N.D. Cal. 2020), Judge Koh addressed a similar Bivens claim
15 challenging Facebook’s removal of the Facebook account and page of Federal Agency of News
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16 (“FAN”). Judge Koh held that “there was no joint action because Plaintiffs fail[ed] to allege specific
17 facts establishing the existence of an agreement or a meeting of the minds between Facebook and
18 the government relating to Facebook’s deletion of FAN’s Facebook page or restriction of FAN’s
19 access to its Facebook account.” Id. at 1126. Here too, CHD has failed to allege specific facts
20 showing that Zuckerberg, or indeed anyone at Facebook, jointly acted with the federal government
21 when Facebook took various actions regarding CHD’s Facebook page. Such a “bare allegation of .
22 . . joint action will not overcome a motion to dismiss.” Dietrich v. John Ascuaga’s Nugget, 548
23 F.3d 892, 900 (9th Cir. 2008); see DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000)
24 (holding that bare allegations of joint action between private persons and state officials will not
25 overcome a motion to dismiss).
26
27 ///
28 ///
23
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b. Encouragement Through Section 230 of the CDA Coupled with
1 Government Pressure
2 CHD also alleges that “government immunity [under Section 230 of the CDA] plus pressure
3 (Rep. Schiff) . . should turn Facebook and Zuckerberg’s private-party conduct into state action.”
4 SAC ¶ 300. CHD asserts that Section 230, “by immunizing private parties against liability if they
5 engage in conduct the government seeks to promote, constitutes sufficient encouragement to turn
6 private action into state action.” CHD’s Opp’n to Facebook’s Mtn. at 6. With regard to coercion,
7 CHD alleges that Congressman Schiff pressured Facebook and Zuckerberg to remove “vaccine
8 misinformation” through his February 2019 letter and his subsequent public statement that “if the
9 social media companies can’t exercise a proper standard of care when it comes to a whole variety
10 of fraudulent or illicit content, then we have to think about whether [Section 230] immunity still
11 makes sense.” SAC ¶ 64.
12 CHD relies on Skinner v. Railway Labs Executives’ Association, 489 U.S. 602 (1989), as
United States District Court
13 support for its contention that the immunity provided by Section 230 is sufficient encouragement to
14 convert private action into state action. In Skinner, railway labor organizations challenged two sets
15 of Federal Railroad Administration (“FRA”) regulations: (1) “Subpart C” regulations that required
Northern District of California
16 private railroad companies to administer blood and urine tests to employees involved in certain train
17 accidents, and (2) “Subpart D” regulations that authorized, but did not require, railroads to
18 administer breath and urine tests to employees who violate certain safety rules. Id. at 606. The
19 Supreme Court held that both regulations constituted government action and were therefore subject
20 to the Fourth Amendment. The Court held that the Subpart C regulations requiring testing
21 constituted government action because “[a] railroad that complies with the provisions of Subpart C
22 of the regulations does so by compulsion of sovereign authority.” Id. at 614. Regarding the Subpart
23 D regulations which allowed but not mandate testing, the Court noted that there were “special
24 features” that demonstrated that the government “did more than adopt a passive position toward the
25 underlying private conduct.” Id. at 615. Those “special features” included the facts that the
26 regulations preempted all state laws and collective bargaining agreements covering the same subject
27 matter; the FRA had the right to receive certain test results; railroads were prohibited from divesting
28 themselves of the authority conferred by Subpart D; and covered employees were not free to decline
24
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1 an employer’s request to submit to breath or urine tests under the conditions set forth in Subpart D.
2 Id. The Court concluded,
3 In light of these provisions, we are unwilling to accept petitioners’ submission that
tests conducted by private railroads in reliance on Subpart D will be primarily the
4 result of private initiative. The Government has removed all legal barriers to the
testing authorized by Subpart D and indeed has made plain not only its strong
5 preference for testing, but also its desire to share the fruits of such intrusions. In
addition, it has mandated that the railroads not bargain away the authority to perform
6 tests granted by Subpart D. These are clear indices of the Government’s
encouragement, endorsement, and participation, and suffice to implicate the Fourth
7 Amendment.
8 Id. at 615-16.
9 Skinner does not aid CHD. “Unlike the regulations in Skinner, Section 230 does not require
10 private entities to do anything, nor does it give the government a right to supervise or obtain
11 information about private activity.” Divino Grp. LLC v. Google LLC, No. 19-CV-04749-VKD,
12 2021 WL 51715, at *6 (N.D. Cal. Jan. 6, 2021). In Divino Group, the plaintiffs asserted that the
United States District Court
13 “the availability of protections under Section 230 of the CDA amounts to government endorsement
14 of defendants’ alleged discrimination,” and thus that YouTube should be considered a state actor.
15 Judge DeMarchi rejected that contention, stating, “nothing about Section 230 is coercive” and
Northern District of California
16 “Section 230 reflects a deliberate absence of government involvement in regulating online speech:
17 ‘Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and
18 accordingly, to keep government interference in the medium to a minimum.’” Id. (quoting Batzel
19 v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003)); see also 47 U.S.C. § 230(b)(2) (“It is the policy of
20 the United States . . . to preserve the vibrant and competitive free market that presently exists for
21 the Internet and other interactive computer services, unfettered by Federal or State regulation.”).
22 The court held, “[a]t most, Section 230 provides protection from civil liability for interactive
23 computer service providers who elect to host information provided by another content provider, or
24 who in good faith act to restrict materials that the provider or user considers ‘obscene, lewd,
25 lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ regardless of whether
26 that material is constitutionally protected.” Id. at *7 (quoting 47 U.S.C. § 230(c)(2)(A)). The Court
27 agrees with Judge DeMarchi’s analysis and concludes that the immunity provided by Section 230
28 does not provide sufficient “encouragement” to convert Facebook’s private acts into state action.
25
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1 CHD also relies on the coercion test. Under the coercion test, state action is found “when
2 the State ‘has exercised coercive power or has provided such significant encouragement, either overt
3 or covert, that the choice must in law be deemed to be that of the State.’” Rendell-Baker v. Kohn,
4 457 U.S. 830, 840 (1982). CHD alleges that Congressman Schiff’s February 2019 letter to
5 Zuckerberg and subsequent public statements coerced Facebook to take action on vaccine
6 misinformation or risk losing certain immunities under Section 230 of the CDA. SAC ¶ 64. CHD
7 contends that Schiff’s statements could reasonably be interpreted as intimating that some form of
8 adverse regulatory action would follow Facebook’s refusal to suppress CHD’s so-called “vaccine
9 misinformation.” CHD’s Opp’n to Facebook’s Mtn. at 6.
10 As support, CHD cites Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d
11 1291 (9th Cir. 1987). In Carlin, Carlin Communications supplied “salacious telephone messages to
12 the public,” and Mountain Bell telephone company carried Carlin’s messages on its “dial-a-message
United States District Court
13 network.” Id. at 1292-93. A deputy county attorney wrote a letter to Mountain Bell threatening to
14 prosecute the company for violating an Arizona statute prohibiting the distribution of sexually
15 explicit material to minors if the phone company continued to provide services to Carlin. Id. at
Northern District of California
16 1293. Mountain Bell terminated Carlin’s services, and Carlin sued Mountain Bell under 42 U.S.C.
17 § 1983 alleging a violation of its First Amendment rights. The Ninth Circuit held, “[w]ith this threat,
18 Arizona ‘exercised coercive power’ over Mountain Bell and thereby converted its otherwise private
19 conduct into state action.” Id. at 1295; see also Okwedy v. Molinari, 333 F.3d 339, 334 (2d Cir.
20 2003) (holding that letter written by city borough president to billboard company criticizing
21 billboards displaying religious organization’s signs proclaiming homosexuality to be a sin and
22 requesting removal of the signs, resulting in signs being removed, could be found to contain implicit
23 threat of retaliation and therefore could support First Amendment Free Speech claim).
24 The Court concludes that CHD has not alleged facts showing government coercion sufficient
25 to deem Facebook or Zuckerberg a federal actor. As a later Ninth Circuit decision noted, “[i]n
26 Carlin,” “the government directed a specific entity to take a specific (allegedly unconstitutional)
27 action against a specific person.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 843 (9th
28 Cir. 1999). CHD does not allege that Schiff (or anyone from the government) directed Facebook or
26
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1 Zuckerberg to take any specific action with regard to CHD or its Facebook page. See SAC ¶¶ 60-
2 64. Instead, CHD alleges that Schiff pressured to Facebook remove “vaccine misinformation” and
3 later told reporters that “if the social media companies can’t exercise a proper standard of care when
4 it comes to a whole variety of fraudulent or illicit content, then we have to think about whether
5 [Section 230] immunity still makes sense.” Id. ¶ 64. These allegations are a far cry from the specific
6 threats in Carlin or Okwedy; see also Daniels v. Alphabet Inc., No. 20-CV-04687-VKD, 2021 WL
7 1222166, at *6 (N.D. Cal. Mar. 31, 2021) (holding “Mr. Daniels does not plead any facts that support
8 his argument that that the federal government ‘coerced’ or ‘significantly encouraged’ defendants to
9 remove his specific Fauci and George Floyd videos from YouTube’s platform” because “Mr.
10 Daniels does not allege the federal government directed a particular result with respect to his Fauci
11 and George Floyd videos.”).10 Further, “[i]f the government is considering regulation, affected
12 private parties can try to convince it there’s no need to regulate without thereby transforming
United States District Court
13 themselves into the state’s agents.” Mathis, 75 F.3d at 503.
14 Accordingly, the Court concludes that CHD has failed to allege the necessary elements of a
15 Bivens claim and DISMISSES the first cause of action.
Northern District of California
16
17 C. “Takings Claims”
18 CHD also contends that, notwithstanding the fact that the SAC frames the Fifth Amendment
19 claim as a Bivens claim, see SAC ¶¶ 303-05, 319-22, “Facebook’s assertion that it cannot be sued
20 for First Amendment damages under Bivens . . . has nothing to do with CHD’s takings claims,
21 because takings claims are not Bivens claims.” CHD’s Opp’n to Facebook’s Mtn. at 9 n.8.
22 However, regardless of how CHD chooses to characterize its Fifth Amendment claim, CHD
23
24 10
As discussed infra in Section V, many of CHD’s proposed supplemental allegations
25 involve similarly general statements by other politicians, such as Speaker Pelosi stating in June 2020
that Facebook had failed to remove “COVID-19 disinformation” from its platform and that Congress
26 needed to “send a message to social media executives: You will be held accountable for your
misconduct,” or broader statements that Section 230 immunity could be “removed” if social media
27 companies did not do more to restrict “dangerous” or “harmful” content – such as content related to
white nationalism – from their platforms. As with Congressman Schiff’s statements, these
28 statements are too general and amorphous to constitute coercive action with respect to the specific
challenged actions in this case.
27
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1 still needs to establish “sufficient government action” to assert a takings claim. Broad v. Sealaska
2 Corp., 85 F.3d 422, 430-31 (9th Cir. 1996) (holding that “takings generally require some
3 government regulation,” and “[w]ithout governmental encouragement or coercion, actions taken by
4 private corporations pursuant to federal law do not transmute into government action under the Fifth
5 Amendment”). For the reasons stated supra, CHD has not done so.
6
7 II. Second Cause of Action: Lanham Act
8 The second cause of action alleges false advertising in violation of the Lanham Act, 15
9 U.S.C. § 1125(a). To state a false advertising claim under the Lanham Act, a plaintiff must allege
10 “a ‘false or misleading representation of fact’ ‘in commercial advertising or promotion’ that
11 ‘misinterprets the nature, characteristics, qualities, or geographic origin of his or her or another
12 person’s goods, services, or commercial activities.’” Prager Univ. v. Google LLC, 951 F.3d 991,
United States District Court
13 999 (9th Cir. 2020) (quoting Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 & n. 2
14 (9th Cir. 1997)). The Lanham Act does not define “commercial advertising or promotion,” but the
15 Ninth Circuit has adopted the following definition: “(1) commercial speech, (2) by a defendant who
Northern District of California
16 is in commercial competition with plaintiff, (3) for the purpose of influencing consumers to buy
17 defendant’s goods or services, and (4) that is sufficiently disseminated to the relevant purchasing
18 public.” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1115 (9th Cir. 2021).11 “Commercial
19 speech is ‘usually defined as speech that does no more than propose a commercial transaction.’” Id.
20 (quoting United States v. United Foods, Inc., 533 U.S. 405, 409 (2001)). “Courts view ‘this
21 definition [as] just a starting point,’ however, and try to give effect to ‘a common-sense distinction’
22 between commercial speech and other varieties of speech.’” Id. (internal citations omitted).
23 The SAC alleges that defendants “made, authored, and published warning label[s] and ‘fact-
24 checks’ on CHD’s page in order to deter Plaintiff’s followers and other consumers from listening
25 to, trusting, and relying on Plaintiff’s content, and donating or contributing to Plaintiff.” SAC ¶ 330.
26
27
11
In Ariix, the Ninth Circuit noted that the Supreme Court’s decision in Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, (2014), “likely abrogated” the element of
28 “commercial competition.” Ariix, 985 F.3d at 1120. This Court’s analysis does not turn on whether
the parties are in “commercial competition.”
28
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1 “By warning consumers instead to ‘go to CDC.gov’ for ‘reliable and up-to-date [vaccine]
2 information,’ defendants intend to persuade consumers instead to follow CDC’s recommendations
3 to get the vaccines produced by its major advertisers, Merck, GSK, Sanofi, and Pfizer, who buy $1
4 billion per annum in advertisements from Facebook.” Id.12 CHD alleges that “Facebook and CHD
5 may reasonably be considered commercial competitors with respect to the messaging regarding
6 vaccines and 5G that they promulgate to Facebook users,” id. ¶ 333, and “Facebook is engaged in
7 promoting competitive products through its pharmaceutical manufacturer advertisers, and
8 competitive services through its affiliation with the CDC and WHO.” Id. ¶ 331.
9 Defendants contend, inter alia, that CHD’s Lanham Act fails because CHD’s alleged injuries
10 are not within the Lanham Act’s “zone of interests” and because the warning label and fact-checks
11 are not “commercial advertising or promotion.” “[T]o come within the zone of interests in a suit
12 for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial interest in
United States District Court
13 reputation or sales” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131-32
14 (2014). “Conduct that is not commercial, and does not involve the sale of goods and services, is
15 outside the ‘dangers that the Lanham Act was designed to address,’ and consequently not actionable
Northern District of California
16 under Section 43(a).” Maffick LLC v. Facebook, Inc., Case No. 20-cv-05222-JD, 2021 WL
17 1893074, at *3 (N.D. Cal. May 11, 2021) (citing Bosley Med. Inst., Inc., v. Kremer, 403 F.3d 672,
18 677 (9th Cir. 2005)).
19 Here, CHD alleges that Facebook’s “warning label” and the third-party fact-checks have
20 caused injury to its “messaging” about vaccines and 5G technology, SAC ¶ 333, and CHD explicitly
21 frames this case as one about censorship of its speech. See id. ¶ 1 (“This case is about how an officer
22
23 12
The SAC challenges as false and misleading the following specific statements which
24 comprise the “warning label” that Facebook has posted on CHD’s Facebook page: “This page posts
about vaccines. When it comes to health, everyone wants reliable, up-to-date information. The
25 Centers for Disease Control (CDC) has information that can help answer questions you may have
about vaccines. Go to CDC.gov.” Id. ¶¶ 347-51. The SAC alleges that “the context in which
26 Facebook’s Warning Label on CHD’s page would ordinarily be seen and read includes: CHD’s own
mission statement on the same page that vaccine safety should be taken away from the CDC; CHD’s
27 message, ‘Read about the CDC & WHO corrupt financial entanglements with vaccine industry,
childrenshealthdefense.org/cdc-who’; and that context incorporates by reference numerous articles
28 on CHD’s page which call out and criticize the CDC’s continued adherence to its ‘all vaccines for
all children’ policy.” Id. ¶ 346.
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1 and an agency within the U.S. Government ‘privatized’ the First Amendment by teaming up with
2 Facebook to censor speech which, under the Bill of Rights, the Government cannot censor.”). CHD
3 attempts to fit its claims under the rubric of the Lanham Act by arguing that “Defendants were
4 seeking to influence consumers to buy the goods and/or services of Facebook’s fact-checking
5 partners.” CHD’s Opp’n to Facebook’s Mtn. at 19 n.18.
6 However, the warning label and fact-checks are not disparaging CHD’s “goods or services,”
7 nor are they promoting the “goods or services” of Facebook, the CDC, or the fact-checking
8 organizations such as Poynter. In addition, the warning label and fact-checks do not encourage
9 Facebook users to donate to the CDC, the fact-checking organizations, or any other organization.
10 Instead, the warning label informs visitors to CHD’s Facebook page that they can visit the CDC
11 website to obtain “reliable up-to-date information” about vaccines, and the fact-checks identify that
12 a post has been fact-checked, with a link to an explanation of why the post/article has been identified
United States District Court
13 as false or misleading. For example, the Poynter fact-check identified in the SAC consisted of an
14 explanation of why the title of an article written by third party Collective Evolution and posted to
15 CHD’s Facebook page was “false.” Thus, all of the alleged misrepresentations – the warning label
Northern District of California
16 and the fact-checks – are simply providing information, albeit information with which CHD
17 disagrees.
18 Indeed, CHD expressly equates “goods” and “services” with information: CHD argues, “In
19 particular, false fact-check labels expressly tout Poynter’s putatively superior information, thus
20 competing with CHD for donation revenue by actively ‘promoting’ their competing ‘products and
21 services.’” CHDs Opp’n to Poynter’s Mtn. at 17 (emphasis added). Under CHD’s expansive and
22 novel theory of false advertising, any Facebook warning label identifying an alternative source of
23 information and any fact-check with an explanation would constitute false advertising under the
24 Lanham Act because of an injury to “messaging.”
25 Judge Donato recently dismissed a similar Lanham Act false advertising claim challenging
26 advisory comments posted by Facebook on a company’s Facebook page. In Maffick LLC v.
27 Facebook, the plaintiff ran three social media pages on Facebook’s platform focusing on “stories
28 about social justice” “environmental issues and sustainability” and “political opinion and . . .
30
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1 expos[ing] hypocrisy across the political spectrum.” Maffick LLC, 2021 WL 1893074, at *1.
2 Facebook determined that Maffick was under the editorial control of the Russian government, and
3 posted an advisory comment on the pages identifying them as “Russia state-controlled media.” Id.
4 Maffick alleged that the advisory was false and that it was injuring Maffick’s reputation, ongoing
5 business relationships, and the viability of current business development opportunities. Id. Maffick
6 also alleged that “monetization of its social media content (through advertising, e-commerce and
7 otherwise) is down” and that its “‘reach,’ a metric that measures the number of people who
8 encounter its social media content, is down.” Id. at *4.
9 After noting that the Lanham Act prohibits false advertising in connection with the sale of
10 goods or services, Judge Donato stated that “[t]here is no obvious connection between [Maffick’s]
11 content and the sale of goods or services” and that “Maffick has not alleged that Facebook attached
12 the ‘Russia state-controlled media’ label to ‘penetrate the relevant market,’ whatever that may be,
United States District Court
13 not has Maffick alleged any facts that overcome the ‘commonsense conclusion’ that neither the label
14 itself nor Facebook’s ‘campaign’ around it constituted an advertisement or promotion as required
15 by Section 43(a)(1)(B).” Id. at *3-4 (quoting Prager Univ., 951 F.3d at 1000); see also Prager
Northern District of California
16 Univ., 951 F.3d at 1000 (dismissing Lanham Act false advertising claim challenging YouTube’s act
17 of tagging PragerU’s videos as appropriate for Restricted Mode because “PragerU did not allege
18 any facts to overcome the commonsense conclusion that representations related to Restricted Mode,
19 such as those in the terms of service, community guidelines, and contracts are not advertisements or
20 a promotional campaign”); see also Ariix, 985 F.3d at 1119 (holding “informational part” of guide
21 to nutritional supplements “that describes the benefits and science of nutritional supplements” was
22 “fully protected speech” and not commercial speech, while “alleged rigged ratings” portion of guide
23 was actionable as a “paid promotion” under the Lanham Act where nutritional supplement company
24 alleged that “the defendants conceived the Guide to juice sales of [competitor] Usana products,
25 actively misled the public about their supposed independence, and fiddled with their own ratings
26 criteria to boost a favored company that lavishes them with hundreds of thousands of dollars in
27 compensation”).
28 Unsurprisingly, CHD does not cite any authority for the proposition that its “messaging”
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1 constitutes “goods” or “services” for purposes of the Lanham Act. Nor does CHD cite any support
2 for its assertion that a defendant can be held liable under the Lanham Act based on speech that is
3 untethered to the sale of goods or services. To the contrary, courts have held that “[t]he mere fact
4 that the parties may compete in the marketplace of ideas is not sufficient to invoke the Lanham Act.”
5 Farah v. Esquire Mag., 736 F.3d 528, 541 (D.C. Cir. 2013) (emphasis in original). In Farah, the
6 D.C. Circuit dismissed a Lanham Act claim brought by a book publisher based on a satirical article
7 posted on Esquire’s politics blog. The court noted that “Farah and Corsi do not allege that Esquire
8 is selling or promoting a competing book. Instead, they assert that ‘generally’ Esquire is their
9 competitor, and maintain that they too ‘write frequently about the birth certificate and ‘natural born
10 citizen’ issues,’ and that ‘readers frequently [] read publications that contain ‘points’ and
11 ‘counterpoints.’” Id. The court held these allegations were insufficient to state a claim because they
12 did not involve commercial speech actionable under the Lanham Act. Id.; see also Bosley, 403 F.3d
United States District Court
13 at 679 (holding there was no liability under the Lanham Act where an unsatisfied hair transplant
14 customer used Bosley’s marks for criticism because the customer’s “use of the Bosley mark [was]
15 not in connection with a sale of goods or services—it [was] in connection with the expression of his
Northern District of California
16 opinion about Bosley’s goods and services.”); Edward Lewis Tobinick, MD v. Novella, 848 F.3d
17 935, 950-52 (11th Cir. 2017) (holding author’s blog posts, which contained allegedly false and
18 defamatory statements about physician’s medical practice, did not constitute commercial speech
19 subject to the Lanham Act where posts did not propose commercial transactions and where stated
20 purpose of the blog was to provide objective analysis of questionable or controversial medical
21 claims); Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1054
22 (10th Cir. 2008) (dismissing Lanham Act claims against the creators of a parody website that
23 criticized religious bookstore’s views because “[u]nless there is a competing good or service labeled
24 or associated with the plaintiff’s trademark, the concerns of the Lanham Act are not invoked.”).
25 The cases CHD does cite are readily distinguishable in that they involve commercial speech
26 and alleged misrepresentations made about products or services. See, e.g., Ariix, 985 F.3d at 1119;
27 Mimedx Group, Inc. v. Osiris Therapeutics, Inc., 16 Civ. 3645, 2017 WL 3129799, at *1 (S.D.N.Y.
28 July 1, 2017) (plaintiff and defendant were “rivals in the wound care biologics market” and plaintiff
32
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1 alleged defendant issued false and misleading statements that its tissue-graft product was better in
2 various ways than the plaintiff’s). In addition, CHD cites a number of cases for the general
3 proposition that a non-profit can sue under the Lanham Act. However, in each of those cases, the
4 non-profit alleged an injury to a commercial interest in sales or reputation. See Committee for
5 Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 818-19 (9th Cir. 1996) (nonprofit sued defendants
6 for infringement of protected tradename under Lanham Act); Birthright v. Birthright, Inc., 827 F.
7 Supp. 1114, 1123 (D.N.J. 1993) (Canadian nonprofit provider of services to pregnant women sued
8 American affiliate for false advertising in fundraising letters after organizations were disaffiliated
9 because “the fundraising letters confused or were likely to confuse a potential donor as to the use of
10 a contribution to Birthright, Inc., and this confusion was material in that the potential donor may not
11 have wished to contribute to an entity no longer connected to the Birthright movement.”); Cal Pure
12 Pistachios, Inc. v. Primex Farms, LLC, No. CV 09-7874-GW(RCX), 2010 WL 11523590, at *1
United States District Court
13 (C.D. Cal. Jan. 7, 2010) (nonprofit processor of pistachio nuts sued competitor under Lanham Act
14 for false statements made by competitor about prices it would pay for nuts in order to attract business
15 away from the plaintiff).
Northern District of California
16 For these reasons, the Court concludes CHD’s alleged injuries are not within the Lanham
17 Act’s “zone of interests” and that the warning label and fact-checks are not “commercial advertising
18 or promotion.” Accordingly, the Court DISMISSES the Lanham Act claim.
19
20 III. Third Cause of Action: RICO
21 The third cause of action asserts a claim under RICO’s civil enforcement provision, 18
22 U.S.C. § 1964(c). To state a civil RICO claim, a plaintiff must allege: “(1) conduct (2) of an
23 enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing
24 injury to plaintiff’s business or property.” Living Designs, Inc. v. E.I. Dupont de Nemours &
25 Co., 431 F.3d 353, 361 (9th Cir. 2005). “Racketeering activity,” within the RICO context, “is any
26 act indictable under several provisions of Title 18 of the United States Code, and includes the
27 predicate acts of mail fraud, wire fraud, and obstruction of justice.” Sanford v. MemberWorks, Inc.,
28 625 F.3d 550, 557 (9th Cir. 2010).
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1 CHD alleges that “the Facebook content management team is an associated-in-fact
2 enterprise,” SAC ¶ 374, and that “all named defendants both inside Facebook’s formal structure
3 (Zuckerberg, Does 1-10) and out (Science Feedback, Poynter, Does 1-10) aided in one or another
4 aspect of their common fraud scheme: to label Plaintiff’s page ‘unreliable’ and ‘out-of-date’ and
5 redirect users to the CDC; to label Plaintiff’s speech-content ‘False’ when it is critical of vaccine or
6 5G network safety, accomplishing this censorship through the sham machinations of ‘content
7 moderators’ and ‘independent fact-checkers’; and to conceal their true purposes of profiting from
8 vaccine manufacturer advertising and from their own vaccine and 5G network development, all of
9 which would be negatively affected by Plaintiff’s ongoing public health-related speech.” Id. ¶ 377.
10 CHD alleges that defendants have violated RICO by committing a pattern of racketeering activity
11 through wire fraud in violation of 18 U.S.C. § 1343. Id. ¶¶ 378-79, 381.
12 Defendants contend, inter alia, that CHD has failed to state a civil RICO claim because CHD
United States District Court
13 has failed to identify any predicate acts of wire fraud. “The federal wire fraud statute makes it a
14 crime to effect (with use of the wires) ‘any scheme or artifice to defraud, or for obtaining money or
15 property by means of false or fraudulent pretenses, representations, or promises.’” Kelly v. United
Northern District of California
16 States, 140 S. Ct. 1565, 1571 (2020) (quoting 18 U.S.C. § 1343)). “The wire fraud statute . . .
17 prohibits only deceptive ‘schemes to deprive [the victim of] money or property.’” Id.; see also
18 Monterey Plaza Hotel Ltd. P'ship v. Loc. 483 of Hotel Emps. & Rest. Emps. Union, AFL-CIO, 215
19 F.3d 923, 926 (9th Cir. 2000) (“[T]he mail and wire fraud statutes . . . prohibit the use of the mails
20 and wire to obtain money or property from the one who is deceived.”) (emphasis in original). As
21 such, “to avoid a dismissal where the RICO claim is based on predicate acts of mail or wire fraud,
22 the plaintiff must allege the defendant used the mails or wires to obtain money or property from the
23 plaintiff or a non-party.” Sugarman v. Muddy Waters Cap. LLC, No. 19-CV-04248-MMC, 2020
24 WL 633596, at *3 (N.D. Cal. Feb. 3, 2020).
25 CHD asserts that it has alleged “at least fifteen predicate acts of wire fraud, including
26 Defendants’ posting of false fact-checking labels on CHD content, Facebook’s fraudulent
27 deactivation of CHD’s donate button and ads, deceptive demotion of content, and concealment
28 through material omission.” CHD’s Opp’n to Facebook’s Mtn. at 11 (citing SAC ¶¶ 79(A)-(J), 222-
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1 26, 322-33, 374-78, 383-85). For example, CHD alleges that defendants have engaged in wire fraud
2 by:
3 • “Misrepresenting as fact to CHD that CHD’s fundraising function was deactivated
4 because CHD violated its terms of service with Facebook by posting ‘false
5 information’ with respect to vaccines.”
6 • “Misrepresenting as fact to CHD’s outside ad agency that CHD’s fundraising
7 advertisements were rejected because CHD violated its terms of service with
8 Facebook by posting ‘false information’ with respect to vaccines.”
9 • “Misrepresenting as fact to all third-party Facebook users by means of a ‘warning
10 label’ on CHD’s page that the CDC has ‘reliable, up-to-date information about
11 vaccines,’ and that such users should ‘go to CDC.gov,’ and, by classic imputation of
12 dishonesty, falsely suggesting that the vaccine-related content on CHD’s page is not
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13 reliable, up-to-date information.”
14 • “Misrepresenting as facts to all third-party Facebook users that particular enumerated
15 CHD-, RFK, Jr.- and third party-content posted on the CHD page contains ‘False
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16 Information Checked by independent fact-checkers,’ and to ‘see why’ users should
17 instead accept the opposition content posted by Facebook’s ‘fact-checkers’ on
18 CHD’s page as ‘true’ information on the same subjects.”
19 • “Engaging in deceptive mechanisms and machine-learning algorithms, which
20 secretly demote, hide, and/or limit the visibility and reach of CHD vaccine- and 5G
21 network-related content (practices known as ‘shadow-banning’ or ‘deboosting’)
22 from third party users whom Facebook psychologically profiles as ‘undecided’ (a
23 practice known as ‘sandboxing’) in order to hide content from those it might sway,
24 while misrepresenting to CHD and all third-party Facebook users that no such
25 artificial processes or limitations have occurred.”
26 • “Misrepresenting as fact to all third-party Facebook users that Facebook relies upon
27 ‘independent fact-checkers’ to identify and tag ‘false information’ on CHD’s
28 Facebook page based on a set of objectively neutral, reliable, and up-to-date factual
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1 criteria, when the criteria that is applied is neither neutral, reliable, nor up-to-date,
2 and the ‘fact-checkers’ are in privity with, and controlled by Facebook. The
3 absurdity of these misrepresentations hits home when one considers that Facebook
4 and Science Feedback created a ‘fact-checking’ exemption for climate science
5 deniers by deeming climate disinformation ineligible for ‘fact-checking,’ because it
6 is ‘opinion.’ . . .”
7 • “Misrepresenting as fact to third-party Facebook users that CHD’s 5G-related
8 content was demoted because it poses an ‘imminent risk of physical harm,’ when
9 Facebook took this action solely to advance its own economic interests in 5G
10 development and deployment.”
11 • “Misrepresenting as fact to all third-party Facebook users that users such as CHD
12 who have had content removed from or tagged on its platform can appeal that
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13 decision either to Facebook’s content moderator panel, or to an ‘independent’
14 Oversight Board, and that in making such determinations, Facebook does not have
15 any conflicts of interest that compromise its judgment. . . .”
Northern District of California
16 • “Concealing the extent to which Facebook actively collaborated with Rep. Schiff,
17 the CDC and the WHO, inter alia, to implement their overall scheme.”
18 • “Concealing their overall scheme by these and other deceptions, including false and
19 disparaging statements about CHD to users of CHD’s Facebook page, and to other
20 third parties.”
21 SAC ¶ 79(A)-(J). With regard to Poynter specifically, CHD asserts that Poynter engaged in wire
22 fraud by fact-checking the post alleged in the SAC as well as by certifying other fact-checking
23 organizations, including Science Feedback, thus “creating the impression that these organizations
24 are ‘independent,’ trustworthy experts, to further enable Defendants’ scheme of censorship,
25 deception and destruction.” CHD’s Opp’n to Poynter’s Mtn. at 13.
26 Defendants contend that these alleged misstatements, omissions, and acts do not constitute
27 wire fraud because CHD has not alleged how defendants are alleged to have obtained “money or
28 property” from anyone who was allegedly deceived. Defendants argue that nowhere in the SAC
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1 does CHD allege that defendants obtained money or property from third-party Facebook users who
2 were deceived by any alleged misstatements, nor does the SAC allege that CHD or its ad agency
3 were somehow deceived by defendants’ misrepresentations and defrauded of their property or
4 money.
5 In response, CHD asserts that defendants intended to “defund and damage” CHD and
6 “sought to deceive visitors to CHD’s Facebook page into giving their charitable dollars not to CHD,
7 but to other competing nonprofit organizations,” such as fact-checkers like Poynter. See CHD’s
8 Opp’n to Facebook’s Mtn. at 12-13; CHD’s Opp’n to Poynter’s Mtn. at 12-13. CHD argues that
9 defendants pursued their fraudulent scheme by “(a) convincing users that CHD was not deserving
10 of donation dollars by falsely labeling CHD content as ‘false’; (b) fraudulently deactivating CHD’s
11 donation button; (c) diverting CHD visitors through its false ‘fact-checking’ click-through screens
12 to web pages of organizations that compete directly with CHD for donations and whose pages
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13 prominently invite visitors to make donations; and (d) fraudulently promoting those competitor
14 entities as champions of children’s health, superior sources of health information, and hence more
15 deserving recipients of donation dollars.” CHD’s Opp’n to Facebook’s Mtn. at 13. CHD also asserts
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16 that defendants “sought to obtain property from the victims of their deception (visitors to CHD’s
17 Facebook page) by taking from them the right to control whether or how much of their property to
18 spend on CHD.” Id. Finally, CHD argues that “while Facebook’s services are free to its users . . .
19 Facebook profits directly, and in intangible goodwill and partner brand protection, by misleading
20 visitors to CHD’s page to click through its false labels and fact-checks to view new prompts and
21 impressions under the deception that CHD’s page contains false, unreliable, and out-of-date
22 information.” Id. at 14.
23 The Court concludes that CHD’s allegations of wire fraud – both those actually plead in the
24 SAC and those unpled but asserted in CHD’s opposition briefs – do not constitute wire fraud because
25 CHD has not alleged any facts showing that defendants engaged in a fraudulent scheme to obtain
26 money or property from Facebook visitors to CHD’s page (or anyone else, including CHD13).
27
13
28 Indeed, as to CHD, the SAC alleges that CHD was prevented from giving Facebook money
because Facebook rejected CHD’s fundraising advertising. SAC ¶ 79(B).
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1 Assuming arguendo that the various alleged misrepresentations, omissions and acts could constitute
2 a fraudulent “scheme,” neither the SAC nor CHD’s oppositions asserts that any Facebook users
3 actually donated to any other organization, much less donated to another organization because they
4 were deceived by defendants’ scheme. Instead, CHD advances a speculative theory that defendants
5 engaged in wire fraud by deceiving visitors to CHD’s Facebook page through the “false” fact-check
6 labels, diverting those visitors to the websites of other organizations, and that those individuals,
7 once diverted, may have donated to CHD’s competitors as a result of defendants’ deception. CHD’s
8 theory of wire fraud is unsupported by any factual allegations that “defendant[s] used the . . . wires
9 to obtain money or property from the plaintiff or a non-party.” Sugarman, 2020 WL 633596, at *3.
10 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
11 do not suffice.” Iqbal, 556 U.S. at 678.
12 In Sugarman, Judge Chesney dismissed a similar RICO claim for failure to allege wire fraud.
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13 There, the plaintiffs alleged that defendants “conspired to publish, and caused to be published on a
14 ‘blog,’ false statements about plaintiffs.” Sugarman, 2020 WL 633596, at *1. As a result, plaintiffs
15 alleged “some readers”—not the plaintiffs themselves—were defrauded and “ceased to do business
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16 with Sugarman.” Id. at *2. However, the court concluded that the alleged conduct did not constitute
17 RICO wire fraud because “the complaint include[d] no facts to support a finding that the [m]oving
18 [d]efendants, or any of them, obtained money or property from [the readers].” Id. at *3; see also
19 Monterey Plaza Hotel, 215 F.3d at 926 (affirming dismissal of civil RICO claim where plaintiff
20 hotel alleged defendant union engaged in mail and wire fraud by making misrepresentations about
21 the hotel to its customers because “[t]he Union did not obtain property by deceiving the Hotel or its
22 customers; the Union was simply carrying on a strategy in a protracted labor dispute.”); see also
23 United States v. Lew, 875 F.2d 219, 221 (9th Cir. 2019) (reversing conviction for mail fraud where
24 there was no evidence defendant obtained money or property from “one who [was] deceived” by
25 his allegedly false statements).
26 The cases upon which CHD relies are inapposite and unavailing. CHD argues that a person
27 could still be guilty of wire fraud even if the money fraudulently obtained went to “third parties” or
28 “associates.” See United States v. Sorich, 523 F.3d 702, 709 (7th Cir. 2008) (holding that the
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1 “private gain” criterion of “honest services mail fraud” “simply mean[s] illegitimate gain,” which
2 does not necessarily have to go to defendant, but may instead go to another party); United States v.
3 Spano, 421 F.3d 599, 603 (7th Cir. 2005) (holding that “[a] participant in a scheme to defraud is
4 guilty [of honest services mail fraud] even if he is an altruist and all the benefits of the fraud accrue
5 to other participants”); United States v. Rezko, No. 05 CR 691, 2007 WL 2904014, at *5 (N.D. Ill.
6 Oct. 2, 2007) (rejecting the defendant’s argument that indictment for mail and wire fraud was
7 insufficient because it did not allege defendant personally gained where indictment alleged
8 defendant’s associates benefitted from fraud). However, CHD has not alleged any facts to establish
9 that defendants, their associates, or any third party obtained money or property from deceived
10 Facebook users or from CHD.
11
12 IV. Fourth Cause of Action: Declaratory Relief
United States District Court
13 CHD asserts that even if its Bivens claims for damages are dismissed, it can still pursue
14 claims for injunctive relief against defendants “for their ongoing First Amendment violations”
15 through its fourth cause of action for declaratory relief. CHD’s Opp’n to Facebook’s Mtn. at 9.
Northern District of California
16 While CHD is correct that “money damages is the remedy under Bivens,” Solida v.
17 McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016), claims for injunctive or declaratory relief based on
18 a violation of the Constitution necessarily must be predicated on state or federal action because “[a]
19 private party is generally not bound by the First Amendment, unless it has acted ‘in concert’ with
20 the state ‘in effecting a particular deprivation of constitutional right.’” Labarrere v. Univ. Pro. &
21 Tech. Emps., 493 F. Supp. 3d 964, 970 (S.D. Cal. 2020) (citing United Steelworkers of Am. v.
22 Sadlowski, 457 U.S. 102, 121 n.16 (1982), and Tsao, 698 F.3d at 1140). CHD’s reliance on AFGE
23 Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007), is unavailing, as the plaintiffs in that case sought
24 injunctive relief based on alleged First Amendment violations resulting from federal action, namely
25 decisions made by the Transportation Security Administration.
26 Here, for all of the reasons stated supra, CHD has not plausibly alleged that defendants
27 engaged in federal action and thus CHD may not seek injunctive relief based on alleged First
28 Amendment violations. In addition, as CHD has failed to state a claim under the Lanham Act or
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1 RICO, there is no “case or controversy” necessary to support a claim for declaratory relief.
2
3 V. Plaintiff’s Motion to Supplement Its Second Amended Complaint, Request for
Judicial Notice, and Motion to Further Supplement Its Second Amended Complaint
4 and for In Camera Inspection Under the All Writs Act
5 On March 8, 2021, CHD filed a Motion to Supplement its Second Amended Complaint.
6 Dkt. No. 76 (Motion to Supplement). CHD’s motion seeks to add supplemental allegations
7 regarding: (i) a January 20, 2021 Executive Order by President Joseph Biden directing efforts to
8 “deter the spread of misinformation and disinformation,” see id. at 4; (ii) the February 10, 2021
9 removal of Robert F. Kennedy, Jr.’s Instagram account, id. at 2-3; (iii) a February 19, 2021 statement
10 by a Facebook spokesperson stating, “the company has reached out to the White House to offer ‘any
11 assistance we can provide,’” id. at 3; (iv) a February 19, 2021 White House press briefing stating
12 that the administration is “committed to working with state and local public health partners, as well
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13 as partners in the private sector, to support getting people vaccinated as quickly and as safely as
14 possible,” id. at 21; (v) a February 19, 2021 report that the Biden Administration was “talking to”
15 social media companies so “they understand the importance of misinformation and disinformation
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16 and how they can get rid of it quickly,” id. at 36; and (vi) a March 5, 2021 screenshot of a “warning
17 label” on an unidentified third-party user’s Facebook account which noted that the user can
18 “Unfollow Children’s Health Defense,” id. at 4.
19 After the hearing on defendants’ motions to dismiss, CHD filed a request for judicial notice
20 seeking judicial notice of 27 “facts” that CHD asserts are relevant to its claims. Defendants object
21 to this filing, arguing that although it is styled as a request for judicial notice, CHD’s submission
22 appears to be another effort to bolster the SAC and CHD’s briefing in opposition to the motions to
23 dismiss. While the Court agrees that the filing is procedurally improper, the Court will consider it
24 as a further proffer of how CHD would amend the complaint if given leave to do so. CHD’s filing
25 requests judicial notice of various congressional committee hearings from 2019-2021,14 and
26
27
14
Based on the Court’s review of the cited materials, the Congressional hearings, some of
which predated the COVID-19 pandemic, focused on a variety of topics related to social media
28 companies, including inter alia, competition, consumer privacy, and regulation of hate speech,
white nationalist groups, political advertising. Thus, many of the quoted statements about the need
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1 statements made by different members of Congress in connection with those hearings, in which
2 some members of Congress stated, inter alia, that social media companies, including Facebook,
3 needed to “restrict” “harmful” and “dangerous” content and “misinformation” – or risk losing
4 Section 230 immunity and/or being subject to regulation. See generally Plaintiff’s Request for
5 Judicial Notice (Dkt. No. 97). CHD also seeks judicial notice of a June 2020 statement by Speaker
6 Nancy Pelosi about Facebook failing to stop the spread of “COVID-19 disinformation” on its
7 platform and the need for Congress to “send a message to social media executives: You will be held
8 accountable for your misconduct.” Id. at 3. CHD also seeks judicial notice of the fact that on April
9 19, 2021, Senators Klobuchar and Lujan wrote a letter to Zuckerberg that – in CHD’s
10 characterization – demanded that Facebook do more to censor and silence “anti-vaccine”
11 influencers, including Robert F. Kennedy Jr.15
12 CHD also requests that the Court take judicial notice of the facts that Senator Klobuchar has
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13 introduced antitrust legislation that could negatively impact Facebook; that on February 8, 2021,
14 Facebook issued its “COVID-19 and Vaccine Policy Updates & Protections” which prohibit users
15 from posting “any claims that COVID-19 vaccines are not effective in preventing COVID-19”; that
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16 Facebook maintains a “Coronavirus (COVID-19) Information Center” that contains links to the
17
18 to regulate “harmful” or “dangerous” content do not relate to “vaccine misinformation” but other
types of speech.
19 15
The full text of the letter can be found at https://www.klobuchar.senate.
20 gov/public/index.cfm/2021/4/klobuchar-lujan-urge-tech-ceos-to-take-action-against-disinforma-
tion-dozen-combat-coronavirus-vaccine-disinformation. In that letter, which was addressed to
21 Zuckerberg and Twitter CEO Jack Dorsey, the senators ask that Twitter and Facebook “step up and
take action against people that are spreading content that can harm the health of Americans” and
22 they ask the CEOs the following four questions:
1. Are your platforms aware of these twelve sources that appear to be repeatedly spreading
23 false or misleading information about the coronavirus vaccine efficacy?
2. What are your specific standards for removing accounts that repeatedly violate your
24 policies on vaccine misinformation? Please address specifically whether the content
shared on each of those twelve accounts violate those standards.
25 3. Who at your company is responsible for (a) setting vaccine disinformation policies and
(b) enforcing those policies? Please provide specific name(s).
26 4. How are you ensuring your content moderation policies are effective for rural, minority,
and non-English communities? Please provide proof of investment in these programs in
27 terms of resource allocation, specific data on campaign efficacy, and number of full &
contract level employees allocated exclusively to those efforts.
28 Id.
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1 CDC website and “cross-links with posts from the CDC”; and that a “high-ranking Facebook
2 officer” recently “admitted” that Facebook is “removing groups, pages and accounts that
3 deliberately discourage people from taking vaccines, regardless of whether the information can bee
4 verified as false or not.” Plaintiff’s Request for Judicial Notice at 9 (citing a May 10, 2021 bbc.com
5 article).
6 Finally, on June 7, 2021, CHD filed a motion to “further supplement” the SAC and for in
7 camera inspection under the All Writ’s Act. This filing again cites the May 10, 2021 bbc.com
8 article, and cites a May 24, 2021 Project Vertitas article for the assertion that a Facebook
9 “whistleblower” went public with Facebook documents “showing that, notwithstanding the
10 company’s public declarations that it censored only ‘false’ vaccine-related claims, Facebook was
11 (and is) in fact systematically and covertly censoring true vaccine-related content, as well as mere
12 expressions of opinion, provided such content was (or is) deemed capable of leading to ‘vaccine
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13 hesitancy.’” Plaintiff’s Motion to Further Supplement at 3 (Dkt. No. 103). CHD also requests the
14 Court to consider: (1) on or about May 25, 2021, Facebook reversed its pre-existing ban on content
15 suggesting that COVID was “manmade or manufactured”; (2) on or about June 3-4, 2021,
Northern District of California
16 Zuckerberg and Facebook Vice-President Heidi Swarz “essentially admitted” that the
17 whistleblower-leaked documents were authentic; (3) on or about June 1-5, 2021, a large number of
18 previously undisclosed emails by or to Dr. Anthony Fauci, director of the National Institute of
19 Allergy and Infectious Diseases, were released to the public pursuant to a third party Freedom of
20 Information Act request; those emails include an email from Zuckerberg to Fauci proposing a
21 collaboration related to a COVID information “hub” on Facebook, as well as an “offer” by
22 Zuckerberg, the details of which are redacted. See id. at 5; Schreffler Decl., Ex. 3. CHD requests
23 that the Court order Facebook to produce the unredacted emails for in camera review.16
24 The Court concludes that none of the proposed supplemental allegations would cure the
25
26
16
According to Facebook, public statements from Facebook’s Policy Communications
Director explain that the redacted portions of the emails do not relate to misinformation or
27 factchecking, but rather that “Zuckerberg told Dr. Fauci of [Facebook’s] plan … to share Facebook
ad credits with government agencies to help them run coronavirus PSAs.” See Facebook’s Opp’n to
28 CHD’s Mtn. to Further Supplement at 5 (quotingTwitter, Andy Stone on Twitter (June 9, 2021),
tinyurl.com/andystonetwitter.)).
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1 deficiencies in CHD’s claims, and thus that leave to amend would be futile. Many of the
2 supplemental allegations – such as the allegation that the Biden Administration was “talking to”
3 social media companies so “they understand the importance of misinformation and disinformation
4 and how they can get rid of it quickly” – are very similar to allegations already contained in the
5 SAC, and for the reasons discussed supra, they are insufficient.
6 As relevant to the Bivens claim against Zuckerberg, none of the proposed new allegations
7 show that Zuckerberg was personally involved in any decisions regarding CHD’s Facebook page.
8 Nor do any of the supplemental allegations show any joint action with the federal government with
9 regard to CHD’s Facebook page. Instead, some of the new allegations mention Robert F. Kennedy,
10 Jr.’s Instagram account, but Mr. Kennedy is not a plaintiff in this litigation. E-mails between
11 Zuckerberg and Dr. Fauci about a COVID information “hub” on Facebook do not relate to any
12 actions taken regarding CHD’s Facebook page. The allegations about other members of Congress
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13 making statements about the need for social media companies to remove harmful or dangerous
14 content from their platforms, including “vaccine misinformation,” or about the possibility of
15 legislation to remove Section 230 immunity are too general to support a claim of governmental
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16 coercion, as there are no allegations that any public official pressured Facebook to take any specific
17 actions regarding CHD’s page.
18 Similarly, none of the proposed supplemental allegations would enable CHD to state claims
19 under the Lanham Act or RICO. The supplemental allegations do not show that CHD has suffered
20 an injury within the Lanham Act’s “zone of interests” or that defendants have engaged in
21 commercial speech actionable under that statute. Nor do any of the proposed supplemental
22 allegations establish the elements of wire fraud as is necessary for the RICO claim.
23 Thus, even if it were true that Facebook “embarked on a campaign to block speech and
24 information according to a COVID ‘vaccine hesitancy’ algorithm regardless of the truth or falsity
25 of that speech,” CHD’s Mtn. to Further Supplement at 2, those allegations do not address the
26 necessary elements of any of CHD’s causes of action.
27 CHD argues that its allegations are sufficient at the pleadings stage, and that it should be
28 permitted to engage in discovery to explore issues such as Zuckerberg’s personal involvement,
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1 government contact with Facebook, and whether Facebook users were deceived by the warning
2 label and fact-checks. See CHD’s Opp’n to Facebook’s Mtn. at 6, 7 n.3, 12 n.10, 28. Similarly,
3 invoking the All Writs Act, CHD asserts that this is an “extraordinary” situation where the Court
4 should lift the stay on discovery and order Facebook to produce unredacted emails between
5 Zuckerberg and Dr. Fauci about Zuckerberg’s “offer” to determine if there is any factual support
6 for CHD’s allegations. However, that is not how federal litigation operates. A plaintiff must
7 plausibly allege a claim at the pleadings stage in order for the case to proceed. See Maffick, 2021
8 WL 1893074, at *5 (rejecting the plaintiff’s argument that “Facebook’s commercial motivations
9 and the issue of whether the Notice and the promotion of the SCME policy of which it is a part
10 constitute commercial speech are fact questions, on which Maffick is entitled to take discovery and
11 present evidence before they are resolved on the merits” because “the Lanham Act does not confer
12 a special license to shoot first, and ask questions later.”).
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13 Accordingly, because CHD has already amended the 151-page complaint three times in
14 response to motions to dismiss filed by defendants, and because none of the proposed supplemental
15 allegations (as articulated in the motion to supplement, the request for judicial notice, and the motion
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16 to further supplement) would cure the deficiencies in plaintiff’s claims, the Court GRANTS
17 defendants’ motions to dismiss and DENIES plaintiff leave to amend.
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27 ///
28 ///
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1 CONCLUSION
2 For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants’
3 motion to dismiss and DENIES plaintiff leave to amend. CHD’s claims against Facebook,
4 Zuckerberg, and Poynter are DISMISSED WITHOUT LEAVE TO AMEND. CHD’s claims
5 against Science Feedback, which has not yet been served and has not appeared in this action, are
6 DISMISSED WITHOUT PREJUDICE.
7
8 IT IS SO ORDERED.
9
10 Dated: June 29, 2021 ______________________________________
SUSAN ILLSTON
11 United States District Judge
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